IN AN EFFORT to prevent medical professionals from having to defend themselves against “frivolous” lawsuits, in 2019 the Kentucky General Assembly enacted KRS 411.167 – Kentucky’s Certificate of Merit statute. This statute requires plaintiffs in medical malpractice lawsuits to file a certificate of merit along with their complaint when instituting their lawsuit.
Prior to its enactment, plaintiffs faced no threshold requirement to file a civil lawsuit. Medical providers were faced with defending against lawsuits from plaintiffs who anticipated developing evidence of standard of care violations during litigation, rather than before filing. Now, plaintiffs must certify that they have a basis for their lawsuit at the outset of the litigation.
To meet this requirement, plaintiffs must submit an affidavit or declaration stating that they have consulted with at least one expert qualified to testify to the applicable standard of care or theory of negligence at play in their case, and stating the plaintiff or their attorney believes from this consultation that they have a reasonable basis to commence the lawsuit.
Legal Challenges and Recent Supreme Court Rulings
The Certificate of Merit statute was challenged in two cases soon after it was enacted and, in 2024, the Supreme Court of Kentucky reviewed and upheld the requirements of KRS 411.167, finding plaintiffs must strictly comply with the Certificate of Merit statute or risk dismissal of their claim.
In Sanchez v. McMillin, et al., a plaintiff failed to file a certificate of merit when filing their complaint. The defendant medical provider filed a motion to dismiss on the grounds that the plaintiff did not strictly comply with KRS 411.167 at the outset. But the plaintiff contended their responses to requests for admissions concerning their pre-suit expert review substantially complied with the statute because those responses identified an expert consultation satisfying the requirements of the Certificate of Merit statute. The trial court disagreed and dismissed the plaintiff’s case.
The Supreme Court of Kentucky took up Sanchez on discretionary review in order to interpret the requirements of KRS 411.167 for the first time. The Supreme Court held strict compliance with KRS 411.167 is mandatory, and not simply directory.
In other words, plaintiffs must file their certificate of merit when instituting their lawsuit, and subsequent expert disclosures mere weeks later do not satisfy the requirements of the statute. The Supreme Court also held the Certificate of Merit requirements apply equally to unrepresented plaintiffs and to plaintiffs represented by an attorney. This ruling was consistent with rulings interpreting the same statute in federal court.
In McWhorter v. Baptist Healthcare System, Inc., the Supreme Court of Kentucky again examined the requirements of KRS 411.167 and held plaintiffs must attach the required Certificate of Merit when filing their lawsuit. The plaintiff in McWhorter failed to file a certificate of merit and their request for additional time to file a certificate was denied by the trial court. The Supreme Court again found for the defendant medical provider because the plaintiff failed to preserve this issue for appeal.
While the plaintiffs in each case alluded to arguments concerning the constitutionality of the statute, neither plaintiff preserved this argument and the Supreme Court was not required to address the constitutional grounds for the legislative enactment of KRS 411.167. Although these cases did not center on constitutional arguments, there are no apparent constitutional arguments against the Certificate of Merit statute.
Limited Exceptions
There are limited exceptions to this statute that providers should keep in mind. Those exceptions are limited to plaintiffs who are acting under a time crunch to file their case before the statute of limitations runs out or plaintiffs whose medical records have not been timely produced by a defendant. These plaintiffs must still file an affidavit or declaration establishing the reason the plaintiff was unable to comply with the statute and a supplemental certificate of merit that satisfies the requirements of the statute within three months of instituting the lawsuit. No certificate of merit is required for plaintiffs suing over a lack of informed consent or proceeding under a claim of res ipsa loquitur – or a claim which “speaks for itself” and does not require expert proof. However, a recent decision in May 2025 by the Kentucky Court of Appeals in Jackson v. Baptist Healthcare System held that litigants proceeding under one of these exceptions must invoke the exception upon which they are relying and offer an affidavit that no cause of action is asserted for which expert testimony is required.
Implications for Medical Providers
As the law currently stands, plaintiffs are required to strictly comply with the Certificate of Merit statute 
and run the risk of a dismissal for even technical noncompliance or a late filing. As stated in Sanchez, trial courts cannot consider lesser sanctions for failing to comply with the statute, because anything less than strict compliance would render the Certificate of Merit requirement toothless. Medical providers and their legal counsel should carefully scrutinize incoming malpractice claims for compliance with the Certificate of Merit statute and preserve the defense afforded to them by the statute.
Currently, there are no pending challenges that appear likely to alter the Court’s strict compliance interpretation of the Certificate of Merit requirements and no apparent efforts review.